Her Majesty the Queen - v. -, 2016 SKPC 111

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 111 Date: August 24, 2016 Information: 35707355 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Pfrimmer Appearing: Ms. M. Kujawa For the Crown Mr. R. Piché For the Accused JUDGMENT B.G. MORGAN , J Overview: [ 1 ] Mr. Pfrimmer is charged with what is commonly known as driving while impaired, and over .08. The charges are more particularly described in the Information.

They arise out of the events of the early morning hours of September 14, 2015, in Saskatoon, Saskatchewan, when Mr. Pfrimmer was the sole occupant of a vehicle that was stopped for speeding by Constables Mitchell and Harvey. [ 2 ] The defence argues that there was an arbitrary detention, that the breath samples were not taken “as soon as practicable”, and

that there were problems with the conduct of the observation period. I will deal with these defences in turn, after setting out the factual background. [ 3 ] The case proceeded on a blended voir dire /trial, with all the evidence being called on the voir dire . By agreement, and depending on the outcome of the voir dire , that evidence would be applied to the trial. Factual Background: [ 4 ] Mr. Pfrimmer’s vehicle was first observed in the Confederation Park area of Saskatoon, and the police stopped the vehicle on Avenue S South, just off 22 nd Street, after following it for a brief time.

When the vehicle pulled over, according to Constable Mitchell, the right front wheels were approximately a foot and a half from the curb, which she felt was excessive. When she went to the driver’s side, she stated that as soon as she walked up to the vehicle she could smell alcohol odour emanating from the compartment of the vehicle. Not seeing any open liquor in the vehicle, and Mr. Pfrimmer being the only occupant, she deduced that the odour of alcohol was coming from him.

To be precise, her evidence was that she did rely on “the smell of alcohol coming from his breath” in forming grounds for the section 245(3) demand, but did also say that she believed the alcohol was coming from the breath of the driver.

I find that she did have an honest belief that the odour was from the defendant’s breath, but that was somewhat of a logical conclusion she drew based on the circumstances: when questioned further on the source of the odour, she said that she couldn’t say “with absolute certainty”. [ 5 ] At the time of advising him that he was being detained for an impaired driving investigation, she agreed she was relying on the odour of alcohol, the fact that he was trying to locate his current registration from amongst other registrations, some expired, the fact that he appeared to be trying to avoid eye contact with the officer, the fact that the vehicle was parked what she felt to be an inappropriate distance from the curb, and the fact that the vehicle had been speeding. [ 6 ] I find that the stop of the vehicle was at 5:55 a.m., the breath demand was at 5:58 a.m., and that the parties arrived at the Saskatoon detention area at approximately 6:30 a.m.

Constable Mitchell determined that the vehicle would have to be towed based on how it was situated when it came to a stop. [ 7 ] When Constables Harvey and Mitchell arrived at detention with Mr. Pfrimmer, Constable Harvey conducted the observation periods, while Constable Mitchell prepared the Intox EC/IR II. Two samples were taken, the first at 7:09 a.m., with the result of 150 mgs. of alcohol in 100 mls of blood and the second at 7:30 a.m. with the result of 160 mgs. of alcohol in 100 mls of blood. [ 8 ] Constable Harvey testified, and noted in his documents, that at 7:07 a.m., Mr.

Pfrimmer “cleared his throat”. He did not recall if Mr. Pfrimmer immediately then swallowed, nor does he recall if he asked for water at that time, although he does recall that at some point Mr.

Pfrimmer asked for water because his mouth was dry. [ 9 ] Constable Harvey also recorded that there were “no other burps or bodily functions”, that is, nothing of any importance to him occurred other than the clearing of the throat, and to be clear, he was not necessarily concerned about the clearing of the throat; however, as a then very junior officer, he felt it was important to make note of anything of that nature, and he testified that he passed that information on to Constable Mitchell, the qualified technician.

Constable Mitchell does not recall being told that, but did say in re- examination that it would not have mattered to her, unless there was some alcohol regurgitated into the mouth of the defendant, as that could affect the accuracy of the readings. [ 10 ] I find that in fact Constable Harvey did pass that information on, and Constable Mitchell simply does not recall being told that. I found each of the officers to be very clear and candid in his or her comments; there is no basis to suggest anyone was being untruthful, and no one is suggesting that.

Minor differences of what each witness recalls are to be expected. [ 11 ] I also accept Constable Mitchell’s evidence that, from her perspective, it would not have made any difference to her as far as operating the breath testing instrument, unless there had been some regurgitation into the mouth. Further, Constable Mitchell indicated that if there was mouth alcohol present when she took a sample, there is what she referred to as a “fail safe” guard in the newer machine

she was using that would alert the operator to that problem. However, she did agree that the safeguard is not 100% accurate. [12] In re-examination, when asked about the potential effect of a burp, she testified that after 15 minutes there would be “nosignificant change in value”. In short, in the absence of knowledge on her part that alcohol had entered into the mouth as a result of anyburp, she would not have proceeded in any different fashion. [13] Against that background, I will deal with the defences raised.

Was there an arbitrary detention? [14] Fleshing out the evidence of Constable Mitchell on this point, she stated that “as soon as I walked up I could smell alcohol inthe cab”, and she asked Mr. Pfrimmer if he knew why he was being stopped. He said that he thought it was because he may have beenspeeding, and he then pulled out a number of different registration forms, all the while avoiding eye contact. This avoidance wasnoteworthy to Cst.

Mitchell, as her experience was that drivers who have been drinking often do not look at an officer, in order to avoidhaving his or her breath directed towards the officer: with most drivers stopped by the police, she testified, the driver does look at theofficer, as he or she is concerned as to the reason for the encounter with the police. [15] Constable Mitchell indicated that at this time there was the “smell of alcohol on his breath”, although she agreed she “can’tsay with absolute certainty” that the odour was definitely coming from the defendant’s breath.

She had him shut off the ignition andstep out of the vehicle, at which point she said she was detaining him for an impaired driving investigation. [16] In cross-examination, it was clear there was nothing out of the ordinary noted with respect to the right turn Mr. Pfrimmermade onto the street where he stopped, nor was the stop itself inappropriate. He was not fumbling with his papers, he was simplylooking for the right document amongst a number of apparently expired registration forms (Cst.

Mitchell said she did not recall if the onehe eventually produced was current). [17] Further, when asked if he had anything to drink, he denied having done so. The officer testified that it would be fair to saythat she concluded the smell of alcohol was coming from Mr. Pfrimmer because there was no alcohol visible in the vehicle, and no oneelse was in the vehicle. Thus, what she was left with as her grounds that would support a continuing investigation was the smell ofalcohol, Mr.

Pfrimmer trying to locate the correct registration, him avoiding eye contact with her, his speeding, and manner of parking,that is, in her view, an inappropriate distance from the curb. [18] Mr. Piché does not take issue with the initial stop; there is no question Mr. Pfrimmer was speeding (he was issued a trafficticket for that offence). However, relying on R v Mann, 2004 SCC 52, and the recent cases from this court of R v Bannerman, 2016SKPC 33 and R v Suteau, 2016 SKPC 79 (in particular paragraphs 26-28), he argues that the threshold of there being a basis for thatinvestigative detention has not been met.

In brief, the argument is that the arresting officer had no reason to believe that a criminaloffence, in this case impaired driving, was being committed. Thus, the officer had no basis to detain Mr Pfrimmer at all, certainly notunder the rubric of investigative detention. If that is the case, Mr. Piché argues, any evidence obtained from the time the defendant wasasked to exit the vehicle should be excluded. If that evidence is excluded, there would be no basis for the section 254(3) breath demand. [19] Ms.

Kujawa argues, by extension of the logic applied in the case of R v Vavra, 2016 SKQB 219, a case that dealt with theissue of reasonable grounds for an officer to make a section 254(3) breath demand, that the threshold is met. She argues, as set out inparagraph 19 of Vavra, that the determination is not to be based on whether or not the defendant is in fact impaired, that being a trialissue. Rather, the test is whether or not the officer’s grounds were “rationally capable of supporting” her belief that an investigativedetention was warranted. [20] The concern addressed by Mr. Piché is not new.

In R v Mellenthin, (SCC), the court expressed concern, indealing with random stops, that they not be turned into “a means of conducting either an unfounded general inquisition or anunreasonable search”. Thus, the risk is real; the question is whether or not that risk was realized in this case.

[ 21 ] As Ms. Kujawa argues, I am not bound by a decision of this court, and as Mr. Piché argues, such a decision should have some persuasive effect. I agree with both counsel. But, as always, everything is contextual; what are the facts that inform any decision? [ 22 ] In Bannerman , the court determined on the facts before it that the officer had no more than a “hunch” that Mr. Bannerman had alcohol in his body. The judge determined that the continued detention of the defendant for investigative purposes was improper.

In Suteau , the court held that the arresting officer “lacked objectively reasonable grounds to even suspect that Mr. Suteau had alcohol in his body, let alone that his ability to drive was impaired by alcohol”. Thus, the court held that the officer lacked “the reasonable grounds necessary for investigative detention at common law”. [ 23 ] In this case, Cst. Mitchell detained Mr. Pfrimmer because she subjectively believed he was committing the offence of impaired driving; that is the reason she provided him for the detention.

Mann requires that the “detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence” (see paragraph 34). [ 24 ] On the circumstances facing the officer, I find that test is met. There may equally be innocent explanations for some of the things that led to this suspicion, but these things need to be looked at in total and in context. I agree that sober people speed, for instance, but that is not the question.

In all of these circumstances, and in particular the fact of the odour of alcohol coming from the cab of a vehicle with no occupant other than the driver, with the officer noting no liquor in the vehicle, open or not, and believing on the facts that the odour was from his breath, even if not absolutely certain of that, it was objectively reasonable for her to continue to investigate the situation. [ 25 ] I therefore conclude that the continued detention was not arbitrary, and find there is no breach of any of Mr. Pfrimmer’s Charter rights.

Were the samples taken “as soon as practicable ”? [ 26 ] The reason the tow truck was called was because the constable felt that the vehicle was parked illegally, that is, a foot and a half from the curb. What flows from this decision on the part of the officer is that the vehicle would need to be towed. Thus, a tow truck was called, delaying departure to the detachment. There is no evidence when that tow truck came, other than a form respecting a provincial license suspension, which shows that it was at 5:54 a.m. that the vehicle was seized.

Even if one were to assume that was the actual moment of seizure by the police, that doesn’t help in determining the time the tow truck arrived. There is, in fact, no direct evidence of when the tow truck arrived. [ 27 ] There is no evidence of what time the police left for the detachment. The best I can do is say that it was obviously some time after 5:54 a.m., and some time prior to approximately 6:30 a.m., when the police arrived at the detachment. Mr.

Piché’s argument is that this is unexplained delay and the samples were therefore not taken as soon as practicable. [ 28 ] This situation arises often, the law being that the Crown does not have to account for every single minute of time. However, if there is an unexplained delay, that can result in the readings being excluded, because they were not taken “as soon as practicable”. Each case of course falls to be determined on the particular facts in play. [ 29 ] In this case, I am not able to conclude that the samples were not taken as soon as practicable.

As the stop was at 5:55 a.m. and the breath demand at 5:58, the figure of 5:54 on the form as reflecting the seizure of the vehicle has to relate to, essentially, the time of the stop (I’m allowing a few minutes leeway either way for differences in watches referred to for times). [ 30 ] It is clear that the actual stop was at 5:55 a.m. Although Cst. Mitchell did not record the time of the arrival of the tow truck, she did say that the wait for it to arrive was “not very long”.

They then went directly to the station after the tow truck arrived at the scene. [ 31 ] Putting all this together, there is a time frame of no more than 35 minutes between the stop and the parties’ arrival at the detachment, during which time the tow truck was summoned, coming to the scene, “not very long” after being called, followed by a

prompt departure to the detachment. [ 32 ] In these circumstances, I find that a satisfactory explanation as to what transpired has been provided, even if precise times are not mentioned. I conclude that the breath samples were taken “as soon as practicable”. The observation period [ 33 ] At some point during the observation period, Constable Harvey, who was conducting that observation, observed that Mr. Pfrimmer “cleared his throat”. He does not recall precisely when that occurred, although he does recall that at some point Mr.

Pfrimmer asked for some water because his mouth was dry. [ 34 ] The notes and/or General Occurrence Report of Constable Harvey indicate that there were “no other burps or bodily functions”. As he explained it, this was referring to the clearing of the throat.

I would not equate a burp with a clearing of the throat, and I find that wording a bit awkward, but clearly what the officer was indicating was that there was nothing else going on out of the ordinary; that is, the defendant cleared his throat. [ 35 ] I am not concerned about the clearing of the throat; it is simply an observation made during the observation period, such observations being precisely what an observation period is designed to ascertain. Had this been a belch or burp of some kind that might bring regurgitated alcohol into the mouth, it would be a different matter.

But the clearing of the throat, especially when it is referenced to a dry mouth, is not a concern. Nor, in fairness to Mr. Piché, does he argue strongly that it is. [ 36 ] What is of greater concern to Mr. Piché is the time frame when the defendant was taken into and out of the testing room for each sample. The officer testified that it was 15 to 20 metres from the observation area to that room, and for officer safety reasons, the officer was probably walking behind him; he does bot specifically recall what he did in this case. I conclude the officer was behind the defendant at those times. Thus, argues Mr.

Piché, the defendant was not under observation at those times. [ 37 ] In R v By , 2015 SKQB 86 , the Court held that failure to conduct a mandatory minimum 15 minute observation period of the subject prior to each test, to ensure that there was no mouth alcohol present, could equate to, and in the circumstances of that case did, the raising of a reasonable doubt as to whether the approved instrument was operated properly. The argument and analysis is carried out in paragraphs 143 - 166 and I am not going to repeat it here.

The question in this case really becomes: Does the fact that the officer walked in behind the defendant mean there was a failure to conduct a proper observation? In support of his argument, Mr. Piché also relies on a number of cases from this court that have applied the reasoning in By . [ 38 ] In By , there was detailed evidence that this observation period was mandatory. On the facts of that case, the officer who was conducting that observation was about four feet away from Mr.

By for a period of nine minutes and 25 seconds, with a 45 second period deducted from that in which the officer was out of the room entirely. Thus, in By , there was not in fact a 15 minute observation period; it was lacking for a period of just short of six minutes. That is, there was no observation at all being conducted for a substantial period of time. [ 39 ] Here, I note that Cst. Harvey was diligent and observant in conducting the observation period. His evidence respecting the clearing of the throat is an example of that. The fact that Mr.

Pfrimmer preceded the officer into and presumably out of the breath test room for officer safety reasons does not mean Mr. Pfrimmer was not under observation at those times. [ 40 ] I note in this case that Cst. Harvey specifically testified that he was always close to Mr. Pfrimmer in case the latter needed help staying on his feet. Whether or not the defendant was in fact as compromised in his balance as Cst. Harvey felt is not important to this point: what is important is that Cst. Harvey’s perception of the risk caused him to remain very close to Mr. Pfrimmer at all times, enhancing his ability to observe him.

This is borne out by the constable’s evidence as to when he first noted an odour of alcohol: “:...because I was just over his left shoulder, I could smell alcohol on his breath” (this was at the scene of the arrest). Cst. Harvey would be no less able to make such observations as he followed Mr. Pfrimmer into the breath testing room. [ 41 ] I am not able to conclude that the fact that the officer walked behind Mr. Pfrimmer into and out of the testing room on two

occasions means that the subject wasn’t under observation. The facts of this case are distinguishable from those in By , which is binding on me, as the facts of this case are distinguishable from the other cases cited by Mr. Piché. [ 42 ] I find that the observation period was properly conducted. [ 43 ] As all the evidence was called on the voir dire , I must first rule on that.

Having determined that the defence has not established a Charter breach on a balance of probabilities, and having dismissed the Charter application, P-1 from the voir dire , the Certificate of a Qualified Technician, shall become P-1 on the trial. [ 44 ] Turning then to the trial questions, the onus of proof is on the Crown to establish each offence beyond a reasonable doubt. [ 45 ] I am not satisfied that burden has been met on the charge of impaired driving. By all accounts, Mr. Pfrimmer’s driving was appropriate, albeit in excess of the speed limit.

It is of course his ability to drive that is in issue, and driving behaviour alone does not necessarily determine that question, but the evidence is that there was no slurred speech noted, there was nothing to suggest he did not understand directions, and there was nothing in Cst. Mitchell’s notes respecting a balance problem upon arrival at the detachment. [ 46 ] On the other side of the equation, there is Cst. Mitchell’s and Cst. Harvey’s observations of balance issues upon exiting the vehicle, Cst.

Harvey’s observations about balance problems at the detachment as well, and the observations of bloodshot and glassy eyes at the roadside. [ 47 ] It is entirely possible that Mr. Pfrimmer’s ability to operate a motor vehicle was impaired by alcohol. However, looking at the totality of the evidence, I have reasonable doubt on that, and I dismiss that charge. [ 48 ] Count 2 is supported by P-1, the Certificate, the lower of the two readings being 150 milligrams of alcohol in 100 millilitres of blood, which exceeds the statutory limit. Mr. Pfrimmer is guilty on count 2. ____________________ B.G. Morgan, J